Tuesday, January 02, 2007

Anti-Gay Peer Harassment Actionable Under Title IX

A federal district court judge in Connecticut recently denied the New Haven Board of Education's motion for summary judgment in a case involving peer harassment directed at a female student on the basis of her perceived sexual orientation. See Riccio v. New Haven Bd. of Educ, 2006 WL 3826687 (D. Conn. Dec. 26, 2006). Title IX does not directly prohibit discrimination on the basis of sexual orientation, but in this case, the judge decided that the anti-gay harassment at issue qualified as discrimination on the basis of sex, even though the victim and primary tormentor were of the same sex.

The plaintiff's daughter, Stefanie Andree, was an eighth grader in the 2003-04 school year when her classmates, including one female student in particular "began calling Andree derogatory names including 'bitch,' 'dyke,' 'freak,' 'lesbian,' and 'gothic.'" The verbal abuse was constant and sometimes escalated into physical altercations. Andree's mother notified school administration about the bullying. Administrators tried to curb the harassment through meetings and counseling but to no avail. Eventually, Andree and her primary tormentor, Lea Lucatino, were separated to opposite corners of the classroom, and when that didn't stop the harassment, Andree was transferred out of the class. The school also required Lucatino be supervised at all times, but unlike other students who bullied their peers, Lucatino was never suspended from school. Andree's mother sued the Board of Education alleging its deliberate indifference to peer harassment on the basis of Andree's sex, which is prohibited under Title IX.

The Board moved for a summary judgment arguing that Andree's harassment was not motivated on the basis of sex but on the basis of her perceived sexual orientation. Citing both the Supreme Court decision in Oncale v. Sundowner Offshore Services (harassment can qualified as employment discrimination on the basis of sex even when the perpetrator and victim are of the same sex) and OCR's sexual harassment policy for Title IX (explaining that some anti-gay harassment is harassment on the basis of sex when it is of a sexual nature), the judge rejected this argument and concluded:

If not for her status as a female, a reasonable trier of fact could conclude that Andree would not have been called the offending slurs. As such, Andree, a female student, targeted by other female students and called a variety of pejorative epithets, including ones implying that she is a female homosexual, has established a genuine issue of fact as to whether this harassment amounts to gender-based discrimination, actionable under Title IX.

Unless the Board appeals, Andree's case will either proceed to trial or settle.